Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 1103 (GAU)

Chandana Roy v. State of Tripura

2006-12-12

HRISHIKESH ROY

body2006
JUDGMENT Hrishikesh Roy, J. 1. The petitioners have moved this Court seeking a direction for extending the benefit of employment contemplated under the die-in-harness scheme prevalent in the State of Tripura. The petitioners are also putting forward an alternate claim for alternate benefit as applicable, if such employment cannot be granted. The basis of the petitioners claim arose out of the death of Ranjit Kumar Roy on 26.5.1996, who was serving as Assistant Teacher in Ram Thakur Pathshala Primary school which is a privately managed Government aided school in the State of Tripura. Late Ranjit Kumar Roy was the husband of the petitioner No. 1 and is the father of petitioner No. 2 who have advanced the claim for compassionate appointment on the basis of the death of Ranjit Kumar Roy. 2. The application presented for compassionate appointment by the petitioners was forwarded to the Director of School Education by communication dated 10.3.1997 (Annexure-3) by the school authority in which the deceased rendered his services. However, no decision on the claim put forward was taken by the respondent-authorities and accordingly, the two writ petitioners are before this Court seeking the relief noted above. 3. The benefit of compassionate appointment under die-in-harness scheme was introduced by the Tripura Government confining the benefit to the legal heirs of only deceased Government servants and teachers who are working in Government schools. Thereafter, a memorandum dated 13.8.1996 was issued (Annexure-R/1) whereby it was provided that financial assistance of Rs.50,000 would be given by the Government, where no person could provided employment under the die-in-harness scheme introduced by the Government. In the said circular dated 13.8.1996, it was indicated that the financial benefit envisaged under the said circular shall be effective from 1.6.1996 but the said benefit will be extended to all pending cases where employment has not been provided so far. Although the benefit of compassionate appointment/financial assistance was not envisaged in terms of the previous policies of the Government, in respect of employees of privately managed Government aided schools in Tripura, the Government thought it appropriate to issue memorandum dated 19.11.1997 whereby the Government indicated its decision to 'extend' the benefit under the die-in-harness scheme, to the teaching and non-teaching employees of the privately managed Government aided schools in Tripura. The writ petitioners are claiming the benefit of a job/financial assistance under the die-in-harness scheme operating in the State of Tripura, benefit of which was 'extended' to employees of privately managed Government aided schools by notification dated 19.11.1997. The contention raised in support of the writ petitioner by Mr. Somik Deb, learned Counsel through elaborate arguments can broadly be noted as under: (I) Although the memorandum dated 19.11.1997 does not specify as to whether the said memorandum would operate prospectively or will have retrospective effect, in the context of the word 'extended' used in the said memorandum, it is only an extension of an existing benefit to another set of persons and accordingly the petitioners would be entitled to the pre-existing benefit as extended, although the death in the instant case had taken place on 26.5.1996, prior to issuance of the memorandum dated 19.11.1997. (II) The learned Counsel also argued that the interpretation to be given for entitlement of the petitioners under memorandum dated 19.11.1997 has to be with regard to the purpose for which the 'extension' of benefit has been envisaged by the Government and since the purpose was a beneficial one, the court should interpret the memorandum dated 19.11.1997 to have effect to cover the cases of the cases of the writ petitioners also. (III) The third contention made by Mr. Deb, learned Counsel for the petitioner is with regard to a cut off date of 19.11.1997 to make an artificial distinction between the same class of persons seeking benefit of compassionate appointment only on the strength of a date that is 19.11.1997 on which the memorandum was issued, without the said date having any nexus with the objective of the beneficial conferment envisaged under the notification. (IV) The final contention advanced on behalf of the petitioner is that the Government has issued a clarificatory memorandum dated 20.2.1999 whereby it is clarified that old cases would also be considered for die-in-harness facility provided application was submitted by the claimant within one year from the date of the death of the concerned Government servant. Taking a cue from the aforesaid memorandum, a submission is advanced that since the petitioners have put forward their claim within one year of death, they are entitled to claim the benefit under the die-in-harness scheme of the Government as their application is pending as on 20.2.1999. 4. Appearing for the respondents-State Ms. Taking a cue from the aforesaid memorandum, a submission is advanced that since the petitioners have put forward their claim within one year of death, they are entitled to claim the benefit under the die-in-harness scheme of the Government as their application is pending as on 20.2.1999. 4. Appearing for the respondents-State Ms. A.S. Lodh has argued that the petitioners are not entitled to the benefit under the die-in-harness scheme as the deceased was an employee of a privately managed Government aided school and since the notification dated 19.11.1997 for the first time 'extended' the benefit of the facilities under the die-in-harness scheme, after the death on 6.5.1996 of the concerned employee, no direction for entitlement of the petitioners can be given. The next contention of Ms. Lodh is that the notification dated 19.11.1997 is to be interpreted only prospectively and since the deceased was not a Government servant at the time of his death, the benefit envisaged under the die-in-harness scheme cannot be given to the writ petitioners. The third contention raised on behalf of the Government is that in the instant case, the school where the deceased worked, has not been made a party and accordingly, the present writ petition is not maintainable. The final argument advanced by the learned State counsel is that the benefit under the die-in-harness scheme is available only to enable the family of the deceased to get over certain financial crisis and since the death had taken place as far back as on 26.5.1996, there cannot be any entitlement of the petitioner to get a job under the die-in-harness scheme. 5. In support of his contention, the learned Counsel for the petitioner has referred to the language of notification dated 19.11.1997 and has drawn attention of this Court to the following sentence: It has also been decided that the benefits under the die-in-harness scheme, shall be extended to the teaching and non-teaching employees of the privately managed Government aided schools in Tripura. It can be seen from the quoted portion that the Government has decided to 'extend' the existing benefits under the die-in-harness scheme to employees of privately managed schools who are receiving aids from the Government. It can be seen from the quoted portion that the Government has decided to 'extend' the existing benefits under the die-in-harness scheme to employees of privately managed schools who are receiving aids from the Government. Referring to the dictionary meaning of the word 'extended', the learned Counsel submitted that it is not a new benefit which is being given by the Government only in respect of employees of privately managed Government aided schools. Therefore, it has been argued that the memorandum dated 19.11.1997 has to be understood to mean that it wishes to 'extend' a pre-existing benefit to another class of people. Reference to the definition given in Black's Law dictionary has been made where the meaning of the word 'extended' is stated as below: Extended. A lengthening out of time previously fixed and not the arbitrary setting of a new date. The said definition given in the Black's dictionary, has been approved by the. Supreme Court in the decision reported in Pravash Chandra Dalui v. Biswanath Bannerjee. From the aforesaid dictionary meaning, the memorandum dated 19.11.1997 is to be understood to mean extension of a preexisting benefit and, therefore, has to be read to mean that the said benefit will go back to the time, when the benefits were available to teachers of Government schools. 6. The learned Counsel for the petitioners has cited a number of decisions to advance his arguments to persuade this Court to interpret the memorandum dated 19.11.1997, by keeping in mind the purpose for which the said memorandum has been issued by the Government. The submission made is that the Government wishes to 'extend' the benefits to another class of employees under the pre-existing die-in-harness scheme and since a benefit is to be conferred, the court has to construct the applicability of the memorandum dated 19.11.1997, keeping in mind that it is a beneficial gesture of the Government and accordingly, construction, keeping the purpose of the memorandum in mind should be made. In support of the said contention, the learned Counsel for the petitioner has referred to Halsbury's Law of England 4th edn. regarding construction of a statute where statute is ambiguous. The learned Counsel has also referred to the decisions in AIR 2004 SC 355 Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd. wherein the Supreme court has referred to the commentary of the Halsbury's on the aforesaid aspect of construction. regarding construction of a statute where statute is ambiguous. The learned Counsel has also referred to the decisions in AIR 2004 SC 355 Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd. wherein the Supreme court has referred to the commentary of the Halsbury's on the aforesaid aspect of construction. The said discussion of the Supreme Court may be extracted herein below: 22. In Halsbury's Laws of England, vol. 44(1), 4th Reissue, para 1474, pp. 906-07, it is stated: Parliament intends that an enactment shall remedy a particular mischief and it is therefore presumed that Parliament intends that the court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment corresponds to its legal meaning, should find a construction which applies the remedy provided by it in such a way as to suppress that mischief. The doctrine originates in Heydon's case where the Barons of the Exchequer resolved hat for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered: (1) what was the common-law before the making of the Act; (2) what was the mischief and defect for which the common law did not provide; (3) what remedy Parliament has resolved and appointed to cure the disease of the commonwealth; and (4) the true reason of the remedy; and then the office of all the judges is always to make such construction and shall: (a) suppress the mischief and advance the remedy; and (b) suppress subtle inventions and evasions for the continuance of the mischief pro privato commodo (for private benefit); and (c) add force and life to the cure and remedy according to the true intent of the makers of the Act pro publico (for the public good). On the aspect of purposive construction, the learned Counsel has also cited the following decisions: (I) (1975) 1 All ER 810 Black-Clawson v. Papierwerke, (II) AIR 1994 SC 1433 Harjit Singh v. Union of India, (III) 1996 CriLJ 3237 S. Gopal Reddy v. State of U.P., (IV) (2003) 1 SCC 421 State of Tripura v. Roopchand Das, (V) 2003 (2) LLJ 735 SC Kunal Singh v. Union of India, (VI) (2003) 4 SCC 712 High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (VII) 2003 (2) SCR 1 DLF Qutam Enclave Complex Educational Charitable Trust v. State of Haryana, (VIII) (2004) 3 SCC 1 Ashok Leyland Ltd. v. State of T.N. and (IX) 2005 (187) ELT 162 (SC) Government of India v. Indian Tobacco Association. It may not be necessary to refer to each of the decisions cited above in detail, but it is considered appropriate to refer to the last of the afore noted decision in the case of Indian Tobacco Association (supra). In this decision, the Supreme Court has discussed how a statute is to be interpreted and has indicated that where a statute is passed for the purpose of supplying an obvious omission in a former statute, the subsequent statute relates back to the time when the prior Act was passed. In the very same case, the Supreme Court has also noted that doctrine of fairness is also a relevant factor for construing a statute. In a case where certain benefit is sought to be extended by keeping in view that the said benefit was already extended by another class of people, it would be appropriate to interpret the document extending the benefit to another class of people with reference to doctrine of fairness. 7. Submissions as regards the entitlement of the petitioners with reference to the clarificatory memorandum dated 20.2.1999 regarding entitlement to pending cases has already been noted. In support of the aforesaid submission, the following citations have been pressed home by the learned Counsel for the petitioners. (I) 1957 CriLJ 605 Asgarali Nasarali Singaporewalla v. State of Bombay, (II) AIR 1962 SC 14 R.R. Chari v. State of U.P. (III) 1971 CriLJ 832 Lt. Col. S.K. Kashyap v. The State of Rajasthan. In support of the aforesaid submission, the following citations have been pressed home by the learned Counsel for the petitioners. (I) 1957 CriLJ 605 Asgarali Nasarali Singaporewalla v. State of Bombay, (II) AIR 1962 SC 14 R.R. Chari v. State of U.P. (III) 1971 CriLJ 832 Lt. Col. S.K. Kashyap v. The State of Rajasthan. On reading of the aforesaid decisions, it appears that the said decisions refer to the definition of 'pending' given in the Stroud's Judicial Dictionary which may be quoted herein below: Pending:- A legal proceeding is "pending" as soon as commenced and until it is concluded, i.e., so long as the Court having original cognizance of it can make an order on the matters in issue, or to be dealt with therein. Similar are the observations of Jessel, M.R. In re Clagett's Estate; Fordham v. Clagett (1882) 20 CH D. 637 (J). What is the meaning of the word "pending"? In my opinion, it includes every insolvency in which any proceedings can by any possibility be taken. That I think is the meaning of the word "pending" A clause is said to be pending in a court of justice when any proceeding can be taken in it. That is the test. On the strength of the aforesaid decision, the petitioners are claiming that as their application for the benefit was filed within one year of the death and since the said application was pending without any consideration or decision, the case of the petitioners are also be treated as a pending case and the Government should be directed for consideration of their case for entitlement claimed by the petitioners. 8. The following decisions have been cited by the learned Counsel for the petitioners to advance the argument that as the benefit available under the Scheme of the Government was sought to be extended to another class of people by the notification dated 19.11.1997, there cannot be any intelligible differentia between such class of persons who become entitled to the benefit, after 19.11.1997 and those who might be entitled to such benefit prior to the said date. The decisions cited on behalf of the petitioners are noted below: (I) 1983 (1) LLJ 104 SC D.S. Nakara v. Union of India, (II) 1997 (2) SCR 60 State of Rajasthan v. Prem Raj, (III) AIR 2001 SC 3634 Subrata Sen v. Union of India The aforesaid decisions indicate that it is permissible for the Government to make reasonable classification but by virtue of the provisions of Article 14, the Government is forbidden to make class distinction. It has been held in D.S. Nakara's case (supra) that while examining the prescription of a cut off date, the court ought to consider the purpose for which a particular cut off date has been specified. If the cut off date has any nexus with the object for conferment of a particular benefit? Dividing one class with another class as regards their entitlement with reference to a cut off date, might in a given case amount to a class distinction which is not permissible under the law. This Court has considered the submissions advanced by the learned Counsels for the parties. It appears that in the instant case, the Government decided to 'extend' benefits under the die-in harness scheme to the employees of privately managed Government aided schools by notification dated 19.11.1997. The said notification did not indicate any new scheme of the Government, but simply 'extended' the existing scheme of the Government to another class of people. Having regard to the definition of 'extension' given in h. Black's Law Dictionary and also the decisions cited, this court, is of the view that the benefit of the circular dated 19.11.1997 has to relate back to the time when the benefit was available to all Government servants and it cannot be said that the benefit would be available to the employees of privately managed Government aided schools only with effect from 19.11.1997. 9. 9. With reference to existence of a the cut off date on the basis of the notification dated 19.11.1997, this Court is of the opinion that said cut off date to deny the benefits to the petitioner by treating them to be in a separate class on a date prior to 19.11.1997, is not a reasonable classification in the perception of the court and accordingly, this Court takes the view that there cannot be any basis for differentiating between the claimants under the die-in-harness scheme of pre-9.11.1997 category and post-9.11.1997 category as it would mean differential treatment to people who are similarly situated. Accordingly, it is held that the effect of the notification dated 19.11.1997 will not be a dividing line to deny the benefit to one class who are claimants prior to the aforesaid date of notification and who are claimants after the aforesaid date of notification. 10. As regards the issue of the petitioners' application being pending before the authorities, in light of the decision that has already been taken in the preceding paragraphs, the said issue need not be answered in the present case. 11. Coming finally to the consideration of relief that may be given to the petitioners, this Court finds sufficient force in the argument made by the learned Counsel Ms. Lodh on behalf of the respondents 'that a job under the die-in-harness scheme is envisaged to take care of the immediate financial needs of the family of a deceased Government servant and is not to be used to give go bye to the provisions of Articles 14 and 16 of the Constitution of India which envisages equal opportunity in matters of public employment. Therefore, this Court takes the view that the petitioners are not entitled to a job under the die-in-harness scheme after so many years, even though the benefit of the circular dated 19.11.1997 have been held applicable to them. However, as there is alternate benefit envisaged by the Government of payment of financial benefit in terms of notification dated 13.8.1996, this Court holds that the petitioners are entitled to the said benefit in terms of the aforesaid circular dated 13.8.1996. Accordingly, the respondents-authorities are directed to, consider the claim of the petitioners in terms of the memorandum dated 13.8.1996 and pass necessary orders on the said entitlement of the petitioners. Such benefit may be given within a reasonable time. Accordingly, the respondents-authorities are directed to, consider the claim of the petitioners in terms of the memorandum dated 13.8.1996 and pass necessary orders on the said entitlement of the petitioners. Such benefit may be given within a reasonable time. The said decision of the respondents-authorities may be taken at an early date and in any case not later than three months from the date of communication of this judgment and order. Accordingly, the writ petition is partly allowed and is disposed off in terms of the above directions. No cost.